Federal Court Rules that Husband’s Emails to Wife Not Privileged

Hamilton, a former member of the Virginia House of Delegates, worked as an administrator for the Newport News school system when the House was not in session. It was alleged that he made a deal with Old Dominion University in 2007 offering to arrange $1 million in federal funding for an education center at the University in exchange for a position at the school.

At trial, prosecutors introduced a series of incriminating emails that Hamilton exchanged with his wife. The emails detailed the couple’s financial problems and included Hamilton’s plan to ask for a specific salary from Old Dominion. After meetings with University officials, Hamilton was granted a position at Old Dominion with the salary he had requested.

Hamilton’s defense attorneys argued that these emails were protected under the marital communications privilege and the information contained in the exchanges could not be used against him at trial. The 4th Circuit disagreed.

Under the marital (or spousal) privilege, communications between a husband and wife cannot be introduced in a case against one of the spouses. The privilege can be waived if one of the spouses voluntarily discloses the substance of the communication to a third party.

Prosecutors claimed that Hamilton waived his marital privilege by using his Newport News school system email account as well as his school-issued computer to send and receive the emails. The Court of Appeals noted that the school adopted a computer-use policy warning users that the emails they sent over the system would not be considered private. Thus, the Court concluded that Hamilton waived his marital privilege and held that the email communications with his wife were admissible against him at trial.

Hamilton’s case is the most recent example of fundamental evidentiary principles adapting to the developments of modern technology. Spouses have long enjoyed protection in their private communications. Many cases have cited the importance of the privilege to encourage free and open communications between spouses during their union.

This decision may threaten more than just the sacred marital communications privilege, potentially putting at risk any privileged information communicated over email, including attorney-client and doctor-patient communications. Criminal defense attorneys need to be aware of this decision and we will continue to follow it to see if the U.S. Supreme Court elects to hear the case.